under oath. Mortgages and deeds of trust may, however, be made to secure payment for property bought, or money loaned, provided they are made at the time of purchase or borrowing.

§ 316. Texas. In 18791 an act was passed providing that every assignment for the benefit of creditors should be construed to pass all the debtor's property, whether specified therein or not. It must be proved or acknowledged, and certified and recorded, like a conveyance. The debtor must annex an inventory. He may make an assignment for the benefit of such of his creditors only as will consent to accept their proportional share of his estate, and discharge him from their respective claims. The assignee must give public notice of his appointment, and consenting creditors must make known to the assignee their consent in writing. The assignee must give a bond. Non-consenting creditors may garnishee the assignee for any excess remaining in his hands after the payment of consenting creditors. The statute also contains various provisions in regard to conveyances intended to give a preference, to the allowing of claims, and the removal and discharge of the assignee.

§ 32. Vermont.-By the statute of November 1, 1843,2 all general assignments thereafter made by debtors for the benefit of creditors were declared to be, as against such creditors, null and void. This statute was repealed by act of November 19, 1852, which declares that all assignments

1

1 Act of 1879, c. 53, p. 57; R. S. (ed. 1879), appendix, p. 5.

2 Act of 1843, p. 7; Compiled Stat. (ed. 1851), p. 390, § 6. For the reasons which led to the enactment of this statute, see the opinion of Isham, J., in Peck v. Merrill, 26 Vt. 686, 692.

'Farr v. Brackett, 30 Vt. 344.

'Laws of 1852, p. 14. See the history of the legislation on this subject discussed in Passumpsic Bank v. Strong, 42 Vt. 29; see Vail v. Pecks, 27 Vt. 764. The provisions of this act do not apply to assignments made out of the State by non-residents. Hanford v. Paine, 32 Vt. 442.

The act of 1843 was confined to general assignments. Partial assignments were still permitted. Mussey v. Noyes, 26 Vt. 462; Noyes v. Hickok, 27 Id. 36. But the act of 1852 applies also to assignments of a part of a debtor's property for the benefit of a part of his creditors. Passumpsic Bank v. Strong, 42 Vt. 29; overruling, on this point, Stanley v. Robbins, 36 Vt. 422.

for the benefit of creditors shall be in writing and signed by the debtor; and in case real estate is assigned, it shall be by deed executed and recorded conformably to the laws relating to the conveyance of real estate. By a subsequent act,1 all assignments were required to be for the equal benefit of all the creditors of the assignor, in proportion to their respective claims. These acts, as amended and now incorporated into the general statutes, contain a variety of provisions requiring the assignment to contain a specific description of the property, and to be accompanied by an inventory of the assigned property and a list of creditors, regulating the proceedings under the assignment, and giving to creditors the power of enforcing a settlement of the trust in a court of chancery.

8

2

The assignors are also confined in the selection of assignees to persons not creditors and not interested in the assignment.

§ 33. Virginia-West Virginia.-In these States there has been no special legislation on the subject of voluntary assignments by debtors, and these conveyances are governed by the statute of fraudulent conveyances as applied and construed by the courts, and certain general provisions of the statutes relative to trusts.

§ 33a. Wisconsin.-In this State, voluntary assignments are declared void unless made to a resident assignee, who shall give a bond" for the faithful performance of the trust, in amount equal to the value of the property, to be ascer

'Laws of 1855, p. 15.

6

2 See Act of Nov. 10, 1857; Laws of 1857, p. 13.

Gen. Stat. (2d ed. 1870), tit. 21, c. 67, p. 453; see Claflin v, Kimball, 52 Vt. 6. Stat. of Wisconsin (ed. 1871), c. 63, vol. I, p. 843; R. S. § 1697; see Stein

lein v. Halstead, 52 Wis. 289; Farwell v. Gundry, Id. 355.

Churchill v. Whipple, 41 Wis. 611; Smith v. McCulloch, 42 Id. 564; Hutchinson v. Brown, 33 Id. 465; Klauber v. Charlton, 47 Id. 564; Same v. Same, 45 Id. 600.

Ball v. Bowe, 49 Wis. 495.

tained by the oath of one or more witnesses and of the assignor; the bond to be given to the clerk of the Circuit Court for the benefit of the creditors. The assignee is also required to accept the assignment in writing indorsed on the assignment and attested by the clerk.1

1Scott v. Seaver, 52 Wis. 175.

4

§ 34. The bankruptcy system introduced by statute into the jurisprudence of England, and derived from the civil law,1 proceeds upon principles and methods in many respects dissimilar to those of the common law. While the common law rewards the diligence of creditors by distributing the estate of an insolvent debtor amongst them according to the priorities they obtain in the pursuit of it, the bankruptcy system regards the property of the debtor as of right belonging to the whole body of his creditors, to be distributed ratably among them towards the satisfaction of their claims.

2

The common law, in the enforcement of its judgments, seizes only so much of the debtor's property as is sufficient to pay in full the individual claim of each creditor as it ripens into execution, but the bankruptcy law on the occasion of certain acts, termed acts of bankruptcy, at once sequestrates the entire estate of the debtor, and places it beyond his control and under a course of distribution in the hands of its own officers. At common law, the debtor must satisfy the claims of his creditors to obtain their voluntary releases, if he would be rid of the burden of his liabilities. The humane policy of the bankrupt law discharges the hon. est debtor from all his obligations, upon compliance with the conditions prescribed by the law for his discharge.

1

The early law of Rome gave creditors the savage remedy of dividing the body of their debtor or selling him and his family into slavery. The Lex Paetelia (about 326 B. C.) enabled a debtor who could swear to being worth as much as he owed, to save his freedom by resigning his property. And many years later the legislation of Julius Cæsar established the cessio bonorum, as an available remedy for all honest insolvents. See Institutes Justinian, 4, 6, 40; Sanders' Justinian (Hammond), 541.

Voluntary assignments for the benefit of creditors, manifestly interfere with the operation of each of these systems. Apart from statutory regulations they may be said to be the creatures of courts of equity.1 But although they withdrew the property of the debtor from the legal pursuit of creditors, they are not, when honestly made, regarded as in contravention of the common law.2

Inasmuch, however, as the method they provide for the payment of the debts of an insolvent is that ordained by the debtor himself, and that method may be at variance with the provisions of the bankruptcy system, they are, whenever brought within the jurisdiction of that system, "subjected to the sharpest scrutiny," and they have not unfrequently been regarded, even when made for the equal benefit of all creditors, as wholly repugnant to the spirit and provisions of the bankrupt act. A brief review of the bankruptcy legislation as affecting voluntary assignments is essential to a clear apprehension of the questions which have arisen under the administration of the bankrupt law.

§ 35. English Statutes. The first introduction of a bankrupt law in England was by the statutes of 34 and 35 Hen. VIII, c. 4. This statute was very imperfect. It empowered the lord chancellor and other high officers, upon petition of a creditor, to seize and distribute the estate of bankrupts ratably among their creditors. But the grounds of the application were confined within no definite limits. This statute was enlarged and almost totally altered by 13 Eliz. c. 7. By the statute of Elizabeth, the law of

1 Carlton v. Baldwin, 22 Tex. 724.

6

2 See ante, p. 23. Lord Ellenborough, in Pickstock v. Lyster, 3 M. & S. 372.

4

* Mr. Justice Swayne, in Farren v. Crawford, 2 N. B. R. 602.

* 2 Bl. Com. 474.

This statute was, as we learn from the preamble, directed against debtors "who, craftily obtaining into their hands great substance of other men's goods, do suddenly flee to parts unknown, or keep their houses, not minding to pay, or return to pay, any of their creditors their debts and duties, but at their own will and pleasure consume the substance obtained by credit from other men for their own pleasure and delicate living, against all reason, equity and good conscience." "Sir J. Jekyll, in Small v. Oudley, 3 P. Wms. 427.